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Snapshot

  • Recent changes to the Bail Act 2013 (NSW) were rushed, poorly drafted and extraordinarily wide-reaching.
  • Section 22B provides that a defendant must ordinarily be refused bail if they have been convicted and are awaiting sentencing, so long as they ‘will be’ sentenced to full time custody.
  • To avoid bail being revoked immediately, the defendant must establish ‘special or exceptional circumstances’.
  • ‘[I]n an application for the detention of an offender to which s 22B applies, the prosecution must satisfy the Court, on the balance of probabilities, that no sentencing alternative other than fulltime custody could lawfully be imposed. The word “will” connotes a degree of certainty or confidence that fulltime imprisonment will be the outcome of the sentencing hearing.’

Rushed, poorly drafted, and extraordinarily wide-reaching, s 22B of the Bail Act 2013 (‘the Act’) came into force on 27 June 2022. At least ostensibly, it ordinarily requires courts to refuse bail to defendants who have pleaded or been found guilty if the ultimate sentence is going to be fulltime custody. If you ever appear in bail courts, it is essential you grapple with the operation of s 22B. But, as we will see, that is easier said than done.

The catalyst: talkback radio

Late on 14 June 2022, Ray Hadley spoke privately on the phone to NSW Premier Dominic Perrottet about a man named Neil Duncan. Duncan had been convicted of child sex offences after a trial and his bail was continued pending sentence. By the morning after their telephone conversation, the Premier was on the radio with Mr Hadley promising to close the so-called ‘loophole’ which this continuation of bail allegedly represented. The leader of the opposition announced Labor’s support, and so the very next afternoon, on Friday 17 June 2022, a draft Bill was circulated to select stakeholder organisations. Section 22B was introduced and passed by the middle of the following week, only seven days after it was first discussed publicly; the feedback the profession could provide was, unsurprisingly, limited. And, as indicated above, it commenced on 27 June 2022.

What does it do (in theory)?

In summary, s 22B provides that a defendant must ordinarily be refused bail if they have been convicted and are awaiting sentencing, so long as they ‘will be’ sentenced to fulltime custody. If the prosecution satisfies the court of that criterion (more on which, below), then in order to avoid immediately having their bail revoked, the defendant must establish ‘special or exceptional circumstances’.

The section does not only apply after trials; it applies any time a person is convicted pending sentence, provided only that they ‘will be’ sentenced to custody, provided that there is either a release application or a detention application.

What does it say?

 Unsurprisingly, given the turnaround time, the drafting of s 22B is poor.[1]

Given the importance of the wording, it is as well to extract most of the section:

22B   Limitation regarding bail during period following conviction and before sentencing for certain offences

 (1)  During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court—

 (a)  on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or

 (b)  on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.

 (2)  If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person’s detention is not justified.

 …

 (5)  In this section—

        conviction also includes a plea of guilty.
        Note—
        Conviction is defined in section 4(1) to include a finding of guilt.

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